President Signs Act Restricting Acquisition and Disclosure of Genetic Information by Employers
On May 21, 2008 President Bush signed the Genetic Information Nondiscrimination Act (GINA) which had been passed nearly unanimously by both the House and Senate. GINA prohibits discrimination by both health insurers and employers on the basis of genetic information. The employment provisions of the new law do not take effect until November 21, 2009, and the Equal Employment Opportunity Commission is required to issue final regulations by May 21, 2009.
Under GINA, employers are barred from firing, refusing to hire, or otherwise discriminating against employees based on their genetic information. Employers are not permitted to request or acquire employees’ genetic information, or to disclose such information, except in limited circumstances. GINA provides some exceptions, such as information provided by an employee to certify compliance with Family and Medical Leave Act (FMLA) requirements (e.g., if the employee requested leave due to a genetic disease, or to care for a parent or family member with a genetic disease), and protects employers that acquire the information inadvertently.
GINA also creates a new federal cause of action similar to those available for other forms of discrimination covered by Title VII of the Civil Rights Act of 1964, including a right to jury trial and compensatory and punitive damages, which are capped at $300,000. Similar to the process under Title VII, an employee alleging genetic discrimination must first file a charge with the Equal Employment Opportunity Commission (EEOC), which will then investigate the charge and, if it finds “reasonable cause,” will attempt to conciliate the matter before it files suit on behalf of the charging party or issues a right to sue letter. Unlike Title VII, however, GINA does not create a cause of action based on disparate impact.
Other unrelated provisions of GINA include revisions to various provisions of the Fair Labor Standards Act. This includes the creation of penalties of up to $50,000 for the death of or serious injury to a worker under age 18 resulting from of child labor violations, and up to $11,000 for other child labor violations. The new law also increases penalties for repeated or willful violations of overtime and minimum wage provisions in sections 6 and 7 of the Fair Labor Standards Act from $1,000 to $1,100 per violation. These provisions are all effective as of May 21, 2008, the date of enactment.
GINA also prohibits discrimination by insurance providers. Health plans and insurers are not permitted to request genetic testing or information except on a voluntary basis, and may not use any genetic information to determine eligibility for insurance coverage or premiums. The provisions affecting health insurers take effect on May 21, 2009, one year after enactment.
Employers have expressed concerns over some provisions of the new law. For example, GINA expressly does not provide for federal preemption of the 34 existing state laws on the acquisition and use of genetic information, many of which are more stringent than the new federal law. In addition, employers have expressed uncertainty over the protections for unintended acquisition of genetic information. For example, GINA exempts employers who discover genetic information through Family and Medical Leave Act processes but not from other types of leave requests. If an employer obtained genetic information through a request for sick leave rather than FMLA leave, it could result in a violation of GINA. The law does protect “inadvertent” discoveries, but the scope of this exception is unclear.
To comply with GINA, employers must store genetic information in separate personnel files and may only provide it to the employee at his or her written request, or in certain limited situations to comply with FMLA certification provisions. Employers should assess their current practices to determine situations in which genetic information might be acquired, and whether these circumstances fit within the GINA’s exceptions or could expose the company to liability.
For additional information concerning GINA, please do not hesitate to contact any of our attorneys.